VZ v University of Newcastle

[2011] NSWADT 245

Administrative Decisions Tribunal

New South Wales

Case Title:	VZ v University of Newcastle
Medium Neutral Citation:	[2011] NSWADT 245
Hearing Date(s):	On the papers
Decision Date:	28 October 2011
Jurisdiction:
Before:	P Molony, Judicial Member
Decision:	1.The Tribunal does not have jurisdiction to determine VZ's application that 'the wording on the transcript be deleted.' 2.This matter shall be listed for a directions hearing at 2pm on 6 December 2011 at which the future course of the application will be determined.
Catchwords:	Privacy and Personal Information Protection Act 1998 - internal review - scope
Legislation Cited:	Privacy and Personal Information Protection Act 1998
Cases Cited:	Department of Education and Training v GA (No.3) [2004] NSWADTAP 50 Department of Education and Training v ZR (No 2) (GD) [2009] NSWADTAP 44 KO' & 'KP v Commissioner of Police, New South Wales Police [2005] NSWADT 18
Texts Cited:
Category:	Interlocutory applications
Parties:	Applicant - VZ Respondent - University of Newcastle
Representation
- Counsel:
- Solicitors:	Surry Hills Legal Service (Applicant) Hicksons Lawyers (Respondent) J McAteer (Privacy Commissioner)
File number(s):	113207
Publication Restriction:

REASONS FOR DECISION

Introduction

1. This is a decision concerning the Tribunal's jurisdiction to hear and determine the second limb of VZ's application to the Tribunal to review conduct of the University of Newcastle (the agency) under the Privacy and Personal Information Protection Act 1998 (the PPIP Act). In his application to the Tribunal which was filed on 28 July 2011 VZ sought the following orders:

   That subject Abor3080 be placed on [VZ]'s academic transcript.

   That wording on the transcript be deleted.

   The wording in issue is agreed to read -

   External: candidature terminated by research training committee effective 31-3-05.

2. In essence the agency argues that the internal review did not consider the deletion VZ seeks in his application to the Tribunal, and that, as a result, the Tribunal has no jurisdiction to review that conduct. VZ disputes this, saying that he did make such a request.

3. At a planning meeting held on 30 August 2011 it was decided that I should determine the jurisdiction issue on the papers. It is an issue that can be adequately determined in the absence of the parties. All parties, including the Privacy Commissioner, have made submissions to which I have had regard.

The Tribunal's jurisdiction on review

1. A review of conduct under the PPIP Act is not at large. It is confined in its scope by the initial request for internal review, reasonably construed: Department of Education and Training v GA (No.3) [2004] NSWADTAP 50, KO' & 'KP v Commissioner of Police, New South Wales Police [2005] NSWADT 18 and Department of Education and Training v ZR (No 2) (GD) [2009] NSWADTAP 44. This is so as s 55 of the PPIP Act allows an applicant to seek review of ' the conduct that was the subject of the application (for internal review) under s 53,' not other conduct.

2. In KO' & 'KP v Commissioner of Police, New South Wales Police [2005] NSWADT 18, the Tribunal said:

   '10 The Tribunal's jurisdiction is determined by a combination of sections 52, 53 and 55 of the Privacy Act. In Department of Education and Training v GA (No.3) [2004] NSWADTAP 50, the Appeal Panel held that the conduct complained of must relate to a breach or alleged breach or contravention of an IPP or Code of Practice (s52) and held (at [7]).

   11 In the present case, there was no subsequent correspondence or discussion between the parties clarifying the conduct complained of in the internal review application. The respondent's internal review investigation report makes this clear.

   12 In Department of Education and Training v GA (No.3) [2004] NSWADTAP 50, a number of other principles were determined in order to assist a Tribunal in determining the scope of an internal review application (at [13], [14] and [17]). In summary, the Appeal Panel held (as to contraventions of the IPPs only):

   "a) the applicant does not need to identify the contravention ... on which he or she relies in the application for review;

   b) if an applicant does identify one or more contraventions ...that information would assist the agency in identifying the underlying conduct about which the applicant is aggrieved. However, the fact that a particular provision is nominated does not mean that the conduct that is identified amounts to a contravention of that provision;

   c) an agency is not confined to considering the contraventions referred to by the applicant. An agency must address any contravention ... that is reasonably open on a reading of the entire application for review."

   13 In the present case, the internal review application plainly related to a particular disclosure by a particular, named, officer of the respondent on a particular occasion. Indeed, it is the only relevant conduct referred to in the relevant sense. Notwithstanding that a wide spectrum of contraventions of the IPPs is later alleged in the application (by a naming of the provisions only) the scope of the application is about the disclosure of certain personal information. I accept the submission of the respondent that these applications do not concern, for example, collection or storage of the alleged personal information.'

3. This passage was cited with approval by the Appeal Panel in Department of Education and Training v ZR (No 2) (GD) [2009] NSWADTAP 44 at [18]. The Appeal Panel found that the scope of the internal review request, reasonably construed, confined the boundaries of the external review. This is so as s 54 of the PPIP Act allows an applicant to seek review of ' the conduct that was the subject of the application [for internal review] under section 53,' not other conduct.

4. In order to determine whether or the Tribunal has jurisdiction to consider the second limb of VZ's application for review, it is necessary to determine whether his internal review request, reasonably construed, encompassed a request for deletion of the words from his academic transcript.

The internal review request

1. VZ's submissions identified his application to the Tribunal as his internal review request. This is plainly not the case.

2. Both the Agency and the Privacy Commissioner have identified the internal review request as being contained in an email that VZ sent to the Vice Chancellor on 28 April 2011. It formed part of a chain of correspondence to which it is necessary to have regard.

3. On 29 January 2011 VZ emailed the agency with respect to his academic transcript. He wrote -

   The transcript in which you sent me does not indicate a distinction grade for completing ABOR3080 Indigenous Research Lot's of Questions subject unit that was completed in semester 1, 2004.

   The teacher for this subject was Professor Nerida Blair of the Aboriginal Unit of your university.

   It must be stated however, this unit was to be done by "audit only" as indicated in your university acceptance letter to me, but I submitted the work anyway because I was told to. That is, I thought the university knew what they were doing. Unfortunately, they did not.

   This is partly why your university was to blame for negligence and made a pay out some (sic) during mediation that was conducted by the Supreme Court if New South Wales.

   I would like my transcript updated and for the person/s who caused this grave mistake to have disciplinary action taken against them.

   I understand that the University "the governing body of your employees" was held accountable for the mistake.

   If this is cause me (sic) any further grief psychologically and medically I will take further legal action.

   The cause of action (my transcript not being corrected) deems the "Deed of Release" signed during mediation void. In other words not legally bound by its terms within because of the transcript incorrectness (sic).

   I ask that university fix the mistake immediately and send me 2 amended copies of it.

   Furthermore, where it states on the transcript that you sent me that "candidature terminated by Research Training Committee effective 31 March 2005", I want it to state those words with "due to University Negligence" next to it. Or something that we can agree on.

   ...

4. On 31 January 2011 the Vice Chancellor responded -

   Thank you for your enquiry in regard to ABOR3080.

   As you have correctly identified, and as you were informed in your letter, ABOR3080 was an "audit only" course.

   As an audit only course, enrolment for this course was not required, and you were not enrolled in the course. The School recommended your participation in the course to the extent that it was deemed to be of benefit to your research degree. The extent to which any student participates in an audit only course, whether to a great extent or a small extent, is a matter of shared responsibility and consultation between the student and the University.

   There was no enrolment and subsequently no grade recorded for ABOR3080.

5. On 28 April 2011 VZ emailed the Vice Chancellor as follows -

   As pursuant to our conversation not so long ago regarding subject ABOR3080 Indigenous Research Lot's of Questions that I was told to complete in 2004 has not shown on my transcript with the distinction grade from the university.

   I have had dealings with the university concerning the matter and you were going to contact me about this.

   I have given ample time for this matter to be looked into by the university and now ask under the PPIP Act NSW that an internal review be conducted into this matter.

6. The internal review, which was then conducted, found "no breach of the privacy legislation." The internal review did not consider VZ's initial request with respect to the following words in his academic transcript: "candidature terminated by Research Training Committee effective 31 March 2005".

Consideration

1. In my opinion the email from VZ to the Agency of 28 April 2011 constitutes his request for internal review under the PPIP Act. It is a request for an internal review to be conducted into "this matter." That email does not specify what "this matter" is.

2. Ms Mackay, who conducted the internal review, however, was clearly aware of the course of correspondence between VZ and the Agency as she referred to it in her internal review decision. That correspondence, particularly VZ's email of 20 January 2011, set out the substance of VZ's complaints. This was plainly the "matter" about which VZ was seeking an internal review. To make any sense of VZ's email of 28 April 2011 it was necessary to have regard to prior dealings between VZ and the Agency concerning the "matter."

3. A review of that correspondence reveals that the matter to which VZ referred concerned two amendments he sought to his academic transcript. First, he wanted it amened to include a statement that he had passed ABOR3080 in Semester 1 of 2004 with a Distinction. Secondly he sought the addition of words qualifying the notation "candidature terminated by Research Training Committee effective 31 March 2005," to the effect that this was "due the University Negligence' or similar. Both required consideration under s 15 of the PPIP Act

4. In my view VZ's internal review request, reasonably construed, required the Agency to consider those issues. It did not require the Agency to consider deleting the words "candidature terminated by Research Training Committee effective 31 March 2005." A request for deletion had not been made by VZ. I do not think his request for the agency to insert words qualifying why his candidature was terminated, can be reasonably construed as a request for deletion of the words noting the termination.

5. It follows that the Tribunal on review does not have jurisdiction to consider the deletion of those words, as their deletion did not fall within the scope of the internal review request, reasonably construed.

6. The Tribunal does however, have jurisdiction to review the Agency's conduct in dealing with the two requests for amendment that VZ made.

Conclusion

1. Having made that finding I direct that the matter be listed for a directions hearing at 2pm on 6 December 2011 at which the future course of the matter will be determined.

   I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

   Registrar

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